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On Dec. 17, 1903, in Kitty Hawk, N.C., Orville Wright took off in a flying machine and landed 120 feet away. It was the first time in history a machine carrying a man had raised itself into the air by its own power, moved under control, and landed at a point as high as that from which it started. The event caused no shock waves. First, the brothers, though they issued a brief statement, did little to publicize their achievement. Second, the few people who did learn about the flight probably didn’t believe it. At the time, the idea of heavier-than-air flight was thought to be the province of crackpots. Minds would change, but it would be years before the world acknowledged the Wrights as the fathers of flight, and years more before the brothers could stake a legal claim to their invention. Now, of course, the brothers are seen as the quintessential inventors. One of the nation’s leading patent law firms, New York’s Fish & Neave, which litigated the Wrights’ patents, still uses a silhouette of the brothers’ flying machine in its firm literature, heralding its century-old association. But the Wright brothers were hardly enamored of the American legal system. They railed against the delays it allowed and the expense it required. Many believe that the stress and fatigue associated with defending their patents killed Wilbur in 1912 when he was just 45 years old. Wilbur Wright first thought of flying in 1899. By 1902 Wilbur and Orville had built and tested a functioning glider, and that was the machine they filed a patent for in 1904. The lawyer who filed the application was not Frederick Fish, the famed patent lawyer whose original firm eventually broke into Fish & Neave and Fish & Richardson. The brothers instead turned to Henry Toulmin of Springfield, Ohio, not far from where they lived in Dayton. Toulmin remained their chief counsel throughout their careers as inventors. While Toulmin and Fish never lost a case on behalf of the pair, the victories came too late for the brothers to profit from their invention as they might have. From the time they invented their machine, the Wrights knew that staking their claim wouldn’t be easy. Wilbur in particular was reluctant to demonstrate what their machine could do without a contract. But it was hard to sell (or license) it without showing it. The brothers also needed a patent. The brothers had applied earlier for a patent, in June 1903. But the U.S. Patent and Trademark Office rejected it summarily on the grounds that the description of their machine was “vague and indefinite.” The patent had been anticipated by at least six other patents and could not be allowed because the device described was “incapable of performing its intended function.” The Wrights hired Toulmin a month after the first flight at Kitty Hawk. While the patent was pending, Wilbur expressed concerns that their colleagues would publish details of their discovery or their competitors would find out how they did it. In 1905 the Wrights offered to license their invention to the U.S. government. The Army Ordnance Board turned them down flat on the grounds that it was not in the business of making “allotments for the experimental device for mechanical flight.” By April 1906 a patent was issued. By then others, especially in France, had flown, the brothers still had no contracts, and their rivals openly doubted the Wrights’ claims. The turning point came in 1908: Wilbur made public flights in France that captured the world’s imagination. Orville made an even more spectacular showing near Washington, D.C., the next year. Their fame only provoked further competition, and the brothers became more and more focused on their legal rights. In June 1908 Orville accused rival Glenn Hammond Curtiss, a successful young motorcycle manufacturer from upstate New York, of copying their designs. In 1909, Wilbur’s thoughts turned to litigation. Besides Curtiss, two French aviators, Louis Bleriot and Henri Farman, were also entering the business. “I intend to bring suit against the importer of Bleriot and Farman machines, and I think the patent matter should be pushed in Europe also,” Wilbur wrote to Orville. By 1910 in the United States, and earlier in Europe, others were making money staging air shows. Wilbur refused to play what he called “the Montebank Game,” insisting that they should earn their returns by exploiting their intellectual property. “We honestly think that the work of 1900-06 has been and will be of value to the world, and that the world owes us something as inventors, regardless of whether we personally make some Roman holidays for accident-loving crowds,” Wilbur wrote to Octave Chanute, a fellow flight pioneer. Early in that year the Wright Co. earned two legal victories in patent actions against the Herring-Curtiss Co. In a decision, U.S. District Court Judge John Hazel of the Western District of New York described the brothers’ “conception of the idea of securing and maintaining equilibrium in the air,” and concluded “its importance cannot be overestimated.” Following Hazel, Judge Learned Hand, sitting in the Southern District, reviewed the prior inventions related to flight and decided the “infringement is clear,” and granted a preliminary injunction. But the 2nd U.S. Circuit Court of Appeals, in a two-paragraph decision, reversed both decisions, citing “a sharp conflict of evidence.” Thrown back into court, by 1911 Wilbur was displaying increasing frustration with his imitators. In June he wrote to Orville: “Only two things lead me to put up with the responsibilities and annoyances for a moment. First, the obligation to people who put money in our business, and second, the reluctance a man naturally feels to allow a lot of scoundrels and thieves to steal his patents.” Delays made Wilbur crazy. In a letter dated May 4, 1912, Wilbur lectured Fish, who had represented Alexander Graham Bell, like a junior associate: “Unnecessary delays by stipulation of counsel have already destroyed three-fourths of the value of our patent. The opportunities of the last two years will never return again. At the present moment almost innumerable competitors are entering the field, and for the first time are producing machines that will really fly.” This was the last letter that Wilbur Wright ever wrote. By May 8 he was in bed with typhoid fever. On the morning of May 30, he was dead. Though Orville won more court victories in 1913 and 1914, the business was losing money. In 1915 Orville sold the company to a group of New York businessmen who reorganized it as the Dayton-Wright Co. When the United States entered World War I, the government instigated a solution to the battles. By that time, Curtiss had its own patents. All aircraft manufacturers joined a cross-licensing agreement that allowed member firms to use each other’s technology for a blanket fee. Dayton-Wright and Curtiss each received $2 million, according to “The Bishop’s Boys,” a biography by Tom Crouch. In 1929, in a historical irony, the two companies merged and formed Curtiss-Wright. In a letter to R.G. Dubois, a lawyer in East Orange, N.J., Orville summed up his experience dealing with the U.S legal system. “The most serious trouble that the American inventor encounters, however, is in the very high cost of litigation in America. Our patent litigation in America cost us over ten times what it cost in either France or Germany. A big part of this is due to the many delays that are permitted.” One hundred years after the first flight at Kitty Hawk, aviation has progressed to an almost unfathomable degree. From the look of things, litigation has not. Dan Ackman, senior columnist for Forbes.com, is completing a screenplay about the Wright brothers. E-mail: [email protected]

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